IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CHRISTOPHER MILLER AND
KELLY MORAN )
Plaintiffs, ) Civil Action No.
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WILMINGTON SAVINGS FUND SOCIETY AND
GEORGE XENOS ) Ref:
Defendants. )
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
- BACKGROUND AND STATEMENT OF FACTS
1.The plaintiffs moved into a property located in Northeast PA In mid-2019 in which they signed a residential lease agreement for a period of three years expiring in 2022.
2.Through their company, they also entered into a notated agreement with the landlord as a contractor to repair and enhance the said property at an agreed-upon expense per project while qualifying for a specific mortgage program.
3.Upon the time of eligibility, an agreement of sale was entered. Shortly after, however, the landlord stopped all further correspondence and communication with the plaintiffs.
4.The plaintiffs continued to honor all obligations of the lease, including rent payments that ultimately were returned. Said property has since gone into the sheriff sale stage of the foreclosure process.
- The mortgage company as deliberately ignored all communication to have any communication from the plaintiffs or entertain anything subject to the matter of a sale agreement or offer.
- STATEMENT OF ISSUES
- Plaintiffs brings this action pursuant to the civil enforcement provision of the Fair Housing Act, 42 U.S.C. §§ 3601, et seq. and 3613 (“F.H.A.”), which protects communities (and the individuals residing in them) from discriminatory acts, policies and/or practices that (1) make housing unavailable or (2) establish terms and conditions in real estate-related transactions, including real estate financing activities, that discriminate on the basis of race or ethnicity.
- Plaintiffs assert this litigation against Defendants because Wells they were legally responsible, either directly, as a control person, or as a successor, for each of the Defendant entities it acquired or merged with.
- Plaintiffs seek injunctive relief to remedy and monetary damages for, Defendants’ predatory and discriminatory residential mortgage lending, servicing, and foreclosure activities.
- Plaintiffs seek relief in the form of a temporary restraining order to prevent foreclosure on the Property and Plaintiffs’ eviction from the property; a declaratory judgment under Texas law stating that the foreclosure sale is null and void and unenforceable; actual and statutory damages under the FDCPA; costs of court; rescission of the foreclosure, mortgage, and Note in the form of a clear title; damages for alleged unfair and deceptive practices; return of all payments by Plaintiffs under the Note, including the down payment; and prejudgment and post-judgment interest
- The plaintiffs seek compensation for premature termination of the three years lease agreement.
- STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine [dispute2 ] as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation omitted); Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”). The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence that would be admissible at trial, indicating there is no dispute of material fact or by showing that the non-moving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322–324.
Once the movant meets his evidentiary burden and demonstrates the absence of a genuine dispute of material fact, the burden shifts to the non-moving party to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Celotex, 477 U.S. at 324; Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see also Fed. R. Civ. P. 56(c) (“A party asserting that a fact cannot be or is genuinely. disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”). A genuine dispute of material fact exists when the non-moving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor: Greenberg, 498 F.3d at 1263.
To survive the movant’s properly supported motion for summary judgment, a party is required to produce “sufficient [favorable] evidence” “that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). “If the evidence [on which the non-moving party relies] is merely colorable … or is not significantly probative … summary judgment may be granted.” Id. at 249–250. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party.” Walkerv. Darby, 911 F.2d 1573, 1576–1577 (11th Cir. 1990) (quoting Anderson, supra).
Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for summary judgment. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). Hence, when a non-moving party fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to its case and on which the nonmovant will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 322 (“[F]ailure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial.”).
For summary judgment purposes, only disputes involving material facts are relevant. United States v. 5800 SW 74th Ave., 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) (“Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment.”). “The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (citation omitted). To demonstrate a genuine dispute of material fact, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine [dispute] for trial.'” Matsushita Elec. Indus. Co, Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the court which is admissible on its face or which can be reduced to admissible form, indicates that there is no genuine dispute of material fact and that the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323–324 (summary judgment appropriate where pleadings, evidentiary materials, and affidavits before the court show there is no genuine dispute as to a requisite material fact); Waddell, 276 F.3d at 1279 (to establish a genuine dispute of material fact, the non-moving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor). However, if there is a conflict in the evidence, “the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255; Ruiz de Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351, 1356 (11th Cir. 2000).
Under Pennsylvania law, a commercial landlord’s ability to recover for rent after a material breach is governed by historical developments in both contract and property law. Stonehedge Square Ltd. P’ship v. Movie Merchants, Inc., 715 A.2d 1082, 1083-84 (Pa. 1998). As a general matter, a commercial landlord must make an election between (1) repossession with the recovery of actual damages to date or (2) the recovery of future rent. Finkle v. Gulf & Western Mfg. Co., 744 F.2d 1015, 1021 (3d Cir. 1984) (citing H.A. Steen Indus., Inc. v. Richer Communications, Inc., 314 A.2d 319, 321-22 (Pa. Super. 1973). In such a setting, a landlord can recover future rent that has not yet become due only if the lease contains an acceleration clause providing for such a remedy. Otherwise, the landlord only can recover rent as it becomes due. Pierce v. Hoffstot, 236 A.2d 828, 830 (Pa. Super. 1967). The recovery of rent under an acceleration clause requires the landlord to remain out of possession and permit the tenant to return to the leasehold during the period for which rent is recovered. Id. (“The tenant, then, does not forfeit [a]ll of his rights when the landlord accelerates, but must thereafter be accorded his possessory rights on payment of the accelerated rent.”); accord Markein-Chalmers-Ludington v. Mead, 14 A.2d 152, 154 (Pa. Super. 1940) (“. . . this appellee, having elected to terminate the lease and recover possession of the premises, cannot, as attempted here, also enter and enforce a judgment for rent for the balance of the term.
the relevant portion of the lease states: “Landlord shall not, during the term of this lease, sell or otherwise dispose of any property constituting all or part of the Entire Premise to anyone other than Tenant until (i) Landlord notifies Tenant of the terms and conditions of any offer to transfer ownership of the Entire Premise, and (ii) Tenant, within 60 days after receiving such notification, fails to enter into a binding agreement to purchase the Entire Premise upon the same terms and conditions contained in such offer.” Lease Agreement (Doc. No. 4-3) at 5 (emphasis added). The first extension and the assignment did not expressly change these terms. Thus, the existence of the right of the first refusal expressly was limited to the duration of the lease. As explained above, the determination of when the lease was terminated is a question of fact for the jury to decide.
- CONCLUSION
For the foregoing reasons, the plaintiff moves to request the court to issue a restraining order to stop the foreclosure of the property until the expiry of the existing lease contract.
RESPECTIVELY SUBMITTED
Christopher Miller and Kelly Moran